August 6, 2003by Israel Foulon LLP
Question: In your most recent issue I read that part-time employees are entitled to 10 days’ vacation after 12 months of employment. I am unclear though whether this means they have to work an equivalent of 12 months (for example, if the part-time employee only works three days per week, can the vacation entitlement be pro-rated?) It doesn’t seem fair that a part-time employee who works three days per week for 12 months should be entitled to the same amount of vacation as a full-time employee working five days per week.
Answer: While it may not seem fair that a part-time employee who only works three days a week should be entitled to the same amount of time off as a full-time employee who works five days per week, so long as they have both completed 12 months of employment, that is the law in Ontario. There are two parts to an employee’s entitlement with respect to vacation under the Employment Standards Act, 2000: vacation time and vacation pay.
An employee’s entitlement to vacation time is not based on how many hours she works per week (for example, whether the employee is full-time or part-time). Entitlement to vacation time is based on the number of months of employment which have been completed by the employee. After 12 months of employment all employees, unless employed in an exempted industry or occupational group, are entitled to vacation time of at least two weeks. The minimum vacation time under the Employment Standards Act, 2000, in Ontario is two weeks regardless of whether the employee is full-time, part-time, temporary, seasonal or on contract.
The only time an employee may receive less than the two weeks’ minimum vacation time entitlement is in situations where the employee wants to take her vacation in periods of less than one week. The employee can only take vacation in periods of less than one week if the employee asks the employer in writing and the employer agrees in writing. In such cases the number of vacation days the employee is entitled to is determined in one of the following two ways:
- the employer calculates the number of days in the employee’s usual work week and multiplies by two; or
- if the employee doesn’t have a usual work week, the employer calculates the average number of days the employee worked each week in the four months before the first day of vacation of taken, and multiplies this number by two.
Where an employer has agreed in writing to an employee’s written request to take her vacation in a period of less than one week, it is possible that in accordance with the method of calculation set out above, the employee may be entitled to less than 10 single vacation days. But unless the employee chooses to have her vacation in periods of less than a week, the minimum vacation time of two weeks applies.
An employee is entitled to vacation pay. It should be noted that whether an employee works full-time or part-time will generally have an impact on the amount of vacation pay the employee receives since it is based on wages. Vacation pay is calculated at four per cent of the gross wages (excluding vacation pay) the employee earned in the 12 months for which the vacation is being given. In most cases, since an employee’s wages will be based on the number of hours worked, the wages of a part-time employee will be less than those of a full-time employee, and accordingly the vacation pay which the part-time employee is entitled to will also be less.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today